CIRCULAR No: Home of 2017 D ate d:)".r

Transcription

1 I I Government of Jammu and Kashmir Home Department " Civil Secretariat, Srinagar. Subject.- Standard Operating Procedure(s) to be followed in NDPScases. CIRCULAR No: Home of 2017 D ate d:)".r The Narcotic Drugs and Psychotropic Substances Act, 1985, provide for stringent provisions for offences related to drug abuse and trafficking. Despite the fact that major offences under the aforesaid Act are non-bailable, it has been observed that in several cases the drug offenders secure acquittal on technical grounds. A large number of offenders in NDPS cases are acquitted due to non-compliance of mandatory provisions and the prescribed procedure. The acquittals in serious offences particularly in NDPScases create a sense of insecurity in the society and undermine the faith of the common man in the administration of criminal justice. As such, it is incumbent upon " the Investigating Agencies/Prosecutors discharge their assigned duties in a professional manner to achieve the desired objective of law. 2. In the above context, the Division Bench of the Hon'ble High Court at Jammu in PIL No.OS/2013, titled (Court on its Own Motion vs. State and Others) has been monitoring the progress of steps taken by the State to ensure that in NDPS cases, the investigation is conducted in a proper and professional manner by adhering to the mandatory provisions of the Act and to minimise the acquittals in such cases. 3. To accomplish the aforesaid purpose and to ensure conviction of - ~ffenders in NDPS cases, all the enforcement agencies of the State are

2 , I expected to work in close coordination and adhere to the provisions of the aforesaid Act during investigation of case, while ensuring vigorous follow up during prosecution of such cases. ~ 4. In view of the above, it is enjoined upon all the officers, entrusted with the investigation/prosecution in NDPS cases to strictly adhere to the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 and the procedures laid down in Standard Operating Procedures (SOP's) formulated by the State Crime Branch. A copy of Standard Operating Procedures (SOP's) is annexed herewith as Annexure-"I" to this Circular. Sd/- (R. K. Goyal) IAS Principal Secretary to Government, Home Department. No: Home/OWP/14/2013 Encl: as above Dated: ~ S Copy to the :- 1. Director General of Police, J&K. 2. _, Inspector General of Police, Kashmir/Jammu. 3. Inspector General of Police, Crime Branch. 4. Secretary to Government, Department of Law, Justice and Parliamentary Affairs. 5. OSD to the Hon'ble Minister for Law, Justice and Parliamentary Affairs. 6. Director Prosecution, PHQ. 7. All SSP's/SP'sfor information and necessary action. 8. Private Secretary to Principal Secretary to Government, Home department. 9. Circular file/stock file JL~ ~ ~q')7 (Mushtaq Ahmad) KAS Deputy Secretary to Government, ~ Home Department

3 P a g e 1 Standard Operating Procedures (SOP) for Investigation & Prosecution of Crimes under The Narcotic Drugs and Psychotropic Substances Act, 1985.

4 P a g e 2 C O N T E N T S 1. PREFACE INTRODUCTION COMMON CAUSES FOR FAILURE OF CASES PROCEDURE TO BE FOLLOWED (Do s and Don ts) MANDATORY LEGAL PROVISIONS UNDER NDPS, Act CHECKLIST SPECIMENS: 1. ANNEXURE-A ANNEXURE-B ANNEXURE-C ANNEXURE-D ANNEXURE-E 42 ******

5 P a g e 3 INTRODUCTION Despite seizure of 968 quintals of narcotic drugs and about seven lakh intoxicants in the last 5/6 years, the problem has not received due attention of Investigators and the Prosecutors. As a result the number of acquittals in such cases greatly outnumbered the convictions, as for every conviction there are about nine acquittals. As per NDPS Act, Sections 41 and 42 are attracted when there is a prior information about the presence of contraband article in any building, conveyance or enclosed place, whileas section 43 applies when information as such is not about the presence of a contraband article at any of such place but such article is likely to be brought in any public place. Thus, it is clear that provisions of Section 42 of NDPS Act would be only applicable when search, seizure and arrest have to be effected without warrant or authorization in any building, conveyance or enclosed place. If such places are not be entered into and searched, the provisions of Section 42 will not be applicable. The powers which have been conferred are to enter, search, seize and arrest without warrant or authorization. Under proviso to sub-section (1) of Section 42 of the NDPS Act, if such officer has reason to believe that a search warrant for authorization cannot be obtained without affording opportunity for the concealment of evidence of facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. Where "prior information" related to the commission of an offence as provided under Chapter IV of the NDPS Act, there is time for obtaining warrant or authorization, efforts should be made to obtain such warrant and authorization from the Magistrate or the Gazetted Officer. Such information should be recorded in writing and a copy thereof sent to the superior immediate officer. Search and seizure can be effected between sunrise and sunset even without obtaining such warrant. Where search has to be effected after sunset and before sunrise, the officer so competent has to record his reason of belief and send a copy thereof to his immediate superior and he can search the building, conveyance or place. Section 42 speaks of 'empowered officer' and such officer when in possession of such information relating to commission of offence under Chapter IV, either on his personal knowledge or

6 P a g e 4 information supplied by any one, must record 'information' in writing and do the following things:- (1) Enter into and search any such building, conveyance or place; (2) In case of resistance, break open any door and remove any obstacle to such entry; (3) Seize drug or substance and all materials; and (4) Detain and search, and, if he thinks proper arrest any person whom he has reasons to believe to have committed any offence punishable under this Act. Where such empowered officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed space at any time between sunset and sunrise after recoding the grounds of his belief. Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within 72 hours send a copy thereof to his immediate official superior. Provisions of Sections 41 and 42 are also mandatory. These provisions make it obligatory that such officers mentioned therein upon receiving information should reduce the same into writing and record reasons for belief while carrying out arrest or seizure as provided under the proviso of Section 41(2) of the Act. To that extent they are held as mandatory. The provisions of NDPS Act, viz. Section 41(2) proviso to Section 42(1) and Section 50 have to be mandatorily complied with. If they are violated, it would vitiate the trial. No such requirement as contemplated under sections 41 or 42 is applicable where such empowered officer is conducting search and seizure in public places. The object of mandatory provisions is to protect the accused from false implication in the case as a legal right to the accused to get his search either before Magistrate or Gazetted Officer. A search before a Gazetted Officer or a Magistrate would impart much more authenticity and credit worthiness to the proceedings. The provisions of Section 50 of the NDPS Act protect the personal liberty and freedom of an accused person. It serves dual purpose and such search inspires confidence and evidence becomes more reliable and trustworthy. The provisions of section 50 are mandatory in nature and not purely procedural and breach thereof vitiates the trial. After a person is arrested and before a search is conducted, it is mandatory on the part of the officer to inform the accused that he has a legal right to be searched before a Gazetted Officer or a Magistrate. The accused will get the benefit, if there is a failure to

7 P a g e 5 comply with this provision. Section 50 applies only in cases of search of the person. It does not extend to search of a vehicle or container or bag or premises. Notice is mandatory in personal search. When compliance of Section 50 is not made, such violation is a serious one and prejudice is caused to the accused. Sub-section(4) provides that where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman the search shall be made by another woman with strict regard to decency. Hence, it can safely be concluded that compliance of Section 50 is mandatory. While making a search and seizure, independent witnesses should be roped in but in absence of any public witness the statement of police officials are required to be scrutinized with due care and caution in order to see whether the offence is brought home against the accused beyond reasonable doubts. As per section 51 of the NDPS Act, the provisions of the Code of Criminal Procedure shall apply in so far as they are not inconsistent with the provisions of this Act to all warrants issued and arrests, searches and seizures made under this Act. Hence, provisions of Section 100 and 165 Cr.PC. are applicable. The provisions under section 100 and 165 Cr.PC. are procedural in nature and breach thereof does not render the evidence so collected as illegal or inadmissible at the trial but this evidence would be examined by the court with due care and caution. The concept of a reasonable and fair trial would be one in which the accused as well as the victim or the aggrieved person gets justice. Various reasons have been cited above for these acquittals under NDPS Act but some focus is required on faulty investigation. Many of the cases fail on account of faulty investigation. If we identify the reasons for defective investigation, we will find that it starts right from the stage of filing of FIR to maintenance of case diary, search and seizure of articles/contrabands and documents. It is the duty of the investigating agencies to investigate fairly and thoroughly and collect all evidence whether for or against the accused. Protection of society being the paramount consideration, the laws procedures and police practice must be such as to ensure the guilty are apprehended and punished with utmost dispatch and in the process, the innocent are not harassed. Keeping in mind the grave consequences which are likely to follow on proof of possession of illicit articles/contrabands under the NDPS Act, namely, the shifting of the onus to the accused and severe punishment to which he becomes liable, the legislature has enacted and provided certain

8 P a g e 6 safeguards in various provisions of the Act including Section 42 and 50 of the Act. A constitutional bench of Hon'ble Apex Court of India has held that while conducting search and seizure in addition to the safeguards provided under the Code of Criminal Procedure, the safeguards provided under the Act are also required to be followed. The harsh provisions of the Act cast a duty upon the prosecution to strictly follow the procedure and compliance of the safeguards. If the search is not carried out strictly in accordance with the safeguards indicated or in violation of procedural prescription, anything recovered suffers from illegality. The courts have held that no reliance can be placed on the evidence when there is failure to comply with provisions relating to search and seizure. In some cases investigation was conducted by some police officer who made recovery, seized the contraband and arrested the accused which was held to be invalid by the courts. Investigation should be conducted by some other independent officer. It is the duty of investigating officer to take necessary precaution after sealing the article to entrust his seal to the respective person (independent witness) so as to avoid the chance of tampering the seal. The Supreme Court has in various cases held that cases where faulty investigation is evident, it is required that they be dealt with utmost sensitivity. In such cases, the broader probabilities are required to be examined and the courts are not to get swayed by minor contradictions or insignificant discrepancies which are not of substantial character. The evidence is required to be appreciated having regard to the background of the entire case and not in isolation. The ground realities are to be kept in view. Thus, it must be kept in view that every defective investigation need not necessarily result in the acquittal. In defective investigation, the only requirement is of extra caution by courts while evaluating evidence. It would not be just to acquit the accused solely as a result of defective investigation. Therefore, a pro-active approach of the court can be useful to meet the ends of justice where the investigating officer has deliberately rendered the investigation defective. Besides above major reasons, there are some other reasons for acquittal in NDPS case: such as delays in trial. There are a large number of people awaiting trial in jails. The long time gap between the occurrence of a crime and the trial, usually casts doubts on the accuracy of the evidence. Often evidence becomes questionable, leading to acquittal on the grounds of insufficient evidence. Witnesses turn hostile during trial adding to high rate of acquittals. The situation needs remedial measures at once so that rule of law

9 P a g e 7 and effectiveness of the criminal justice delivery system are not only maintained but improved. Despite the fact that around cases are registered every year under the Act, the rate of acquittals is a matter of great concern as it elucidates the gap between the investigation and the law. As per the statics of the last five years, the J&K Police has seized 968 quintals of narcotic drugs, which include Kg opium derivates, 2820 Kg Cannibis, 1075 Kg Charas, 133 Kg Heroin/Brown Sugar, 43.4 Kg Ganja, 5 Kg opium etc. and about 7 lakh intoxicants. As per the records maintained by the SCRB, during the period ranging from 2008 to 2013, about 225 cases have ended up in conviction whereas 867 have been acquitted. ******

10 P a g e 8 COMMON REASONS FOR FAILURE OF CASES The person, who recovers the contraband from the accused, lodges the FIR and investigates the same. Separate occurrences/incidents are clubbed in one FIR and investigated. Civil witnesses are not associated during the course of investigation despite their availability on the spot. Army/PMF personnel are not cited as witness during a joint surprise check. Weight balance is often taken from the open market either from some fruit vendor or shopkeeper but weighing of the contraband is not proved at the stage of trial. The person from whom such weighing machine/balance was taken is invariably not examined as a witness. Contraband in a huge quantity is stated to be seized and sealed on the spot by the I.O. However, during the course of trial the seizure is proved to be of lesser quantity and not in consonance with the seizure memo. Places, from where the recoveries/seizures are made/ effected are not proved because of contradictions by the witnesses in their deposition during the course of trial. Recovery and seizure from the accused is not proved because of contradictions in the statement of witnesses, their hostility etc. during the course of trial. Weight of samples taken and sent to FSL for chemical analysis are often disputed as bigger quantity of samples, taken by the I.O in the presence of a Magistrate and sent to FSL turns out to of lesser quantity when weighed by the FSL expert thereby raising a suspicion.

11 P a g e 9 Personal search of the accused is not proved as the Gazetted Officers conducting the search are neither cited as witness nor examined during the course of trial. Cases solely based on the confession of the accused before the officer conducting the search/seizure in the absence of other incriminating evidence collected by the police. Witnesses are not properly examined. Material witnesses are not examined u/s 164-A Cr.PC. Different packs of contraband are recovered and seized but samples are taken from only few. No entries are made in the Malkhana register about the seizures, samples taken for re-sealing etc. in order to prove the safe custody of the seized contraband. Samples are usually sent late to the Forensic Labs and their retention under safe custody is not proved through the entries made in the Malkhana register during the course of trial. No explanation is given for delay in sending the samples. Impression seal affixed on the seized contraband/samples is kept on spurdnama (custody) of some police personnel/munshi of the concerned Police Station and not with an independent witness which creates suspicion and gives rise to the chances of tampering of the samples. Tampering of seals of samples by the person in whose custody the sample seals are kept. Re-sealing of samples is not proved as the Magistrate who conducts the resealing is neither examined nor cited as a witness.

12 P a g e 10 Large numbers of samples are got re-sealed through the Magistrate but only few are sent to or received by the FSL. Seal impression of the seal used for packaging the samples is not sent to FSL for comparison. Police Officials who are deputed alongwith the samples of the seized contraband to FSL and the Malkhana Incharge from whom such samples are taken are not examined nor cited as witnesses. Samples are sent to different laboratories however, fate of all the samples is not shared with the court. While formulating definite opinions, sometimes the FSL experts forward the samples to some other experts in order to detect the percentage of narcotic contraband. However, such reports are neither presented nor shared with the courts by the prosecution. When accused is arrested at a later stage on the basis of clues/identification provided by some witnesses, no ID parade is conducted before a Magistrate to pin point the actual accused. FSL reports/oral depositions of the FSL expert s often prove the seized contrabands by their common names but the scientific species to which such contraband belong as mentioned in the Schedule of NDPS Act, are neither specified in the report/ nor stated through depositions during the course of trial. Mandatory provisions, as laid down in Chapter V of the Act, particularly Sec. 42, 43, 50, 52-A, 55 and 57 are not complied with. There is an intentional and deliberate breach of Sec 55 by the Investigating Officer (s). In majority of cases police witnesses including SHO, I.O, FSL expert, Complainant and Ex-Magistrate are not

13 P a g e 11 examined by the prosecution which results in the failure of the case. No witness including the police witnesses are examined during the course of trial or lesser number of witnesses are examined or deferred witnesses are not produced by the prosecution or the Police witnesses often don t support the story of the prosecution. Reader to the I.O or some other supporting staff who prepared the FIR, seizure memos and final report are not cited as witness nor examined. Case property is not produced in the court for the purpose of identification by the prosecution. Seal used for sealing/re-sealing is not located/ proved at the stage of trial. No sincere efforts are made by the prosecution to examine the material witnesses including the I.O which has a direct bearing on the case. Investigating Officers often fail to explain the contradiction which emerges out from the facts of the case and the testimony of witnesses during the course of trial. ******

14 P a g e 12 PROCEDURE TO BE FOLLOWED (Do s and Don ts) The need of the hour is to build a team of dedicated officers in the field of narcotics law enforcement who are well trained and equipped with updated knowledge and allied skills to effectively combat this menace. To achieve this objective, training programmes need to be conducted at all levels in order to enhance and hone the specialized skills required to improve performance and effectiveness of the personnel involved in drug law enforcement which shall ensure greater understanding of drug law enforcement and help in evolving uniform practices for effective counter measures. It will also enhance quality of cooperation amongst the investigating teams and various drug law enforcement agencies and bring about synergy in anti-drug measures. Therefore, all officer, of and upto, the rank of Sub-Inspector be specially trained in a phased manner to deal with the provisions of NDPS Act and placed/ posted at the newly created specialized cells/teams in each police station/district Hqrs. The training should include participation of all stakeholders i.e. State Police Custom, Central & State Excise, Forest Department, PMFs, RPF, CBI, IB, DRI, Courier Agencies, State Drug Controllers etc in each training programme which will ensure interaction among different agencies during training programmes and increase the quality and speed of interagency cooperation. The training must include the topics relating to drug law administration & enforcement including NDPS Act & Rules, Financial investigation, PITNDPS, Money Laundering, Composite seizures and other linkages, Modus Operandi, National Drug Scenario, important case studies, important court judgments, identification and spot testing of narcotic drugs, concealment methods, rummaging of vessels/ships in the sea for drugs and applicability of customs & other Acts including Computer Based Training Modules etc. and must be conducted at specialized places like National Academy of Customs Excise & Narcotics (NACEN), CBI Academy, National Institute of Criminology & Forensic Science, BSF, SSB, National and State Police Academies, Judicial Academies etc.

15 P a g e 13 Training courses be organised in such a way that atleast 400 officers undergo basic course and 200 officers undergo refresher courses annually. A 2-3 day module on the subject be incorporated in the basic training of Dy. SPs and Sub- Inspectors. Investigation of cases under NDPS be henceforth conducted by a specialized cell/team of officers specifically trained to deal with cases under the NDPS Act with an officer not below the rank of Sub-Inspector as its head under the close supervision of a gazetted officer, who shall monitor the progress of investigation on day to day basis and issue written guidelines to the team. A panel of gazetted officers from the civil departments of the area, whose services shall be utilised on rotational basis, an FSL expert related with the subject, an Ex-Magistrate having jurisdiction in the area, a gazetted officer of Police, NCB expert, an expert from the deptt. of Weight & Measures and a crime photographer shall be kept prepared in a ready state through an administrative order, which shall, on receiving an information reach the spot immediately and carry out the legal formalities, as are required under the provisions of the NDPS, Act. The specialized investigation cell/team shall be equipped with the specialized investigation kit, to be procured by the Govt./PHQ and kept at the disposal of all the police districts, which shall include the material relating to packaging of contrabands, sealing sticks, impression seal, weighing scale and preliminary test kits containing re-agents etc. These kits shall be mandatorily carried by these teams to the spots, as and when information is received and put to maximum use as per requirements in a most professional manner. A checklist of all the steps to be taken on the spot and during the course of investigation, which is included with the recommendations, shall be kept ready in the specialized investigation kit and all the steps shall be tick marked on completion by the I.O before finalization of the investigation. The checklist, if used properly shall minimise the scope of deviation from the prescribed procedure and shall ensure quality investigation. All sort of informations received regarding commission of offences under the NDPS Act, search & seizure conducted

16 P a g e 14 together with the grounds of belief explained under the proviso thereof, shall be mandatorily reduced into writing in the daily diaries of the police stations and a detailed report in this regard shall be shared, without any fail, with the superior officers, at the earliest possible time, preferably within a period of 72 hours, as required under section 42 of NDPS Act. A memo containing details of all the proceedings conducted on the spot shall also be prepared under the signatures of all the persons /witnesses present on the spot. Under no circumstances, the person/officer/official who conducted the search/seizure on the spot or who lodged the complaint, shall carry out the investigation or remain associated with the investigation team. At the time of recovery of contraband, an inventory of such contrabands shall be made in detail relating to their description, quality, quantity, mode of packing, marks, number of other such identifying particulars, country or origin etc. and the entire consignment shall be seized. Minimum of two samples from each packet including a control sample with quantity of each representative sample drawn shall be 5 gms in case of all Narcotic Drugs and Psychotropic Substances, except ganja & charas where the quantity to be drawn shall be 24 gms. In case of Controlled Substances, if the same are in powder or liquid state, each sample size shall be 5 gm/5 ml and if it is a tablet/capsule form then each sample size shall contain at least a strip of 10 tablets/capsules. All these samples shall be packed and sealed in separate packets/boxes through FSL expert present on the spot under the seal of the Magistrate present on the spot, by making use of the seal kept in the specialized investigation kit for the purpose. Remaining contraband shall also be seized in separate packet (s) under the seal kept for the purpose and necessary seizure memos shall be prepared on the spot with specific entries related to time and place. Photography and Videography of the place of occurrence/recovery and process of such seizures shall also be done in order to maintain transparency. All entries regarding recoveries and seizures made on the spot be incorporated in the daily diaries/cd files, at the earliest with the resume of such recoveries/seizures in the CD files. All such samples taken on the spot for scientific examination shall be, as far as practicable, preferably within 24 hours, sent,

17 P a g e 15 through a special messenger, to the concerned Forensic Science Laboratory for chemical examination and reports. Statement of the special messenger deputed for the purpose shall be recorded u/s 161 Cr.PC and kept in the CD file to maintain the chain of evidence. Reports of all contrabands seized shall be forwarded within 48 hours of such seizure to Director General, Narcotics Control Bureau, Ministry of Home Affairs, Govt. of India on the prescribed FORM-F. All seizures shall be kept in the malkhana of the police station concerned with specific entries in the malkhana register under the charge of SHO/Munshi to prove the safe custody of the seized contraband, including the samples, in case the samples, owing to some extreme exigency, are not sent to FSL within the prescribed time as per the mandate of Sec. 55 of NDPS Act. Statements as witnesses of SHO/Munshi/Malkhana Incharge shall be reduced in writing to maintain the chain of evidence. In case, owing to some administrative exigency, if the Magistrate is not present on the spot, all the contraband seized and sealed on the spot in the presence of the independent civil witnesses, shall as far as practical, be taken before the nearest Magistrate at the earliest possible time, preferably within a period of 24 hours for taking out the samples for scientific examination. Chain of custody of the seized contraband shall be preserved through reports in Daily Diary and malkhana registers. All such seized/sealed packets of contrabands shall be placed before the Magistrate concerned who shall break open the seals affixed by the police, check the contents of the seizure to his satisfaction and knowledge and then take out the required samples, as per the prescribed specifications, duly measured/weighed and pack the same in separate packs under his own seals, as mandated under Sec. 52-A NDPS Act. These packs shall be immediately transmitted to FSL through some special messenger with the authority letter of the Magistrate, who shall be kept as a witness and his statement recorded u/s 161 Cr.PC and kept in CD file to maintain continuity of evidence. The Magistrate shall also be a witness to taking of samples, checking of the contraband and issuing the authority letter/authorization for FSL expert.

18 P a g e 16 The seals used by the I.O, SHO and the Magistrate shall be kept under custody (spurdnama) of some independent witness, who shall produce the said seal and appraise the court accordingly at the time of trial. This process shall further ensure transparency and minimise the presumptive chances of tampering with the seals affixed on the seized contrabands/ samples thereof. In case of chance recovery and its subsequent seizure owing to the reasonable belief that such person may part with the contraband lying in his personal possession, such seizures together with the reasons of belief shall be reduced in writing by the person making such recovery/seizure and his statement to this effect shall be reduced in writing by the I.O. As far as practicable, such recovery/seizure shall be immediately brought into the notice of the Incharge Police Station through all possible mediums of communication viz. Docket, mobile call, SMS, telephone call or through some special messenger. All such means of information shall be specifically detailed in writing, as evidence, to maintain sanctity of evidence. In case where a reasonable suspicion arises that some person is having a contraband in his possession, the officer/official present on the spot shall, as far as practicable, withhold such search and try to preserve the spot/accused till the team of officers specially empowered to deal with such circumstances, as prescribed under Sec. 50 of the NDPS Act arrives and carry out such search strictly in accordance with the mandate of ibid section. While enforcing the mandate of Sec. 50 of the NDPS Act, an option in writing, duly readover and explained in the language the person about to be searched understands, shall be provided and such search shall be carried out by the gazetted officers of the civil department, Magistrate or gazetted officer of the Police, already empanelled for the purpose and available on spot. The signatures shall be obtained from the accused on the option memo together with the signatures of witnesses and kept in the CD file as evidence. As there is no legal provision for attestation of the option memo or seizure memo or mere reference of such gazetted officers in the CD file as evidence, therefore, all such officers present on the spot and conducting the personal search shall sign as witnesses to option memo/seizure memo. The searching officer shall get himself searched through some

19 P a g e 17 other officer in presence of the accused before conducting the search of the accused and details of such searches and seizures shall be reduced in writing in the same manner as the said search/seizure has been conducted. In case, if some person is suspected to be in possession of a contraband but the officer present on the spot believes that there is every possibility that till such time the team of officers specially empowered to effect search/seizure arrives on the spot, the accused may part with the possession of the contraband, he shall in reference to Sub-section 5 & 6 of Sec 50 conduct the search/seizure on the spot immediately and record the proceedings in totality together with the reasons of his belief and transmit the same to the investigating team together with the records of proceedings, seizures and his own statement. As far as practical the respectables/civilians of the area, who are present on the spot of occurrence or recovery, be associated with the investigation and kept as material witnesses in order to ensure transparency and sanctity of the investigation. In case of non-association or reluctance on the part of such civilians present on the spot, their detailed particulars be recorded in the CD file together with the reasons for their reluctance/non-association with the investigation as witnesses, so that the court can be appraised accordingly at the time of trial. All persons arrested and seizures made u/s 41, 42, 43 & 44 of NDPS Act shall be forwarded, without unnecessary delay to the I/C Police Station as required under Sec. 52 NDPS. All persons arrested shall be kept in police lockups/judicial lockups under proper remands/lawful custody with their regular medical checkups and every effort shall be made to complete the investigation and file the chargesheet on merits within the prescribed time frame. Whenever any person makes any arrest or seizure under this Act, he shall, within 48 hours of such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate superior official as per the mandatory requirement of Sec. 57 of NDPS Act. While investigating such type of cases every endeavour shall be made by the Specialized Investigation cells/teams to investigate all the related aspects of the crime keeping all the

20 P a g e 18 possible options open by the use of latest scientific technologies in order to bring the guilt of the accused to fore. Recovery of the contraband is fine but not sufficient in view of the present day crime scenario, as such, the chain of the drug exchanging hands, its origin and destination, links with the terrorist activities etc. is also required to be probed in an effective manner. All articles, things, conveyance etc. used in the transportation of narcotics be also seized with a proper inventory prepared on the spot, as these things/items are liable to be confiscated under Sec. 60 & 61 of the Act as per the procedure laid down in Sec. 63. All samples sent to FSL shall, as far as practicable within a short span of time and on priority, be analysed and examined scientifically by the FSL experts and a report in this regard, specifying all the contents with their parameters including the species, as prescribed in the schedule appended to NDPS Act, be provide to the concerned investigating agency for finalization of the investigation on merits. The Govt. may make all suitable arrangements to post/induct a good number of reputed scientific experts in the FSL concerning the field in order to ensure effective and timely disposal of cases under examination with the FSL and maintain credibility and minimise delays. The services of the legal experts of the Police Department/NCB, who are otherwise not connected with the prosecution of the case at the time of trial, shall be utilized at regular intervals during the course of investigation to minimize the legal tangles and ensure compliance of the mandatory provisions of the Act. Keeping in view the large number of cases under the NDPS Act, the Govt. may empower/designate Special Fast Track Courts in all districts of the state for conducting exclusive trials of these cases in order to having an effective mechanism to deal with such type of cases and achieve desired results as there are still a considerable good number of cases under trial in various courts. PPs/APPs appointed by the Govt. to conduct the trial of such type of cases have proved ineffective to a larger extent

21 P a g e 19 because of their nature of engagement and unaccountability, as such, the services of Police Prosecutors of the designation of Dy. Directors/ Chief Prosecuting Officers can be utilized for conducting the prosecution of these cases in these Special Fast Track Courts to have effective and accountable prosecution for which the Govt./PHQ may designate/post these prosecutors to conduct the prosecution at the earliest in view of the fact that there are still a considerable number of cases under trial in various courts of the State. The Govt./PHQ may also provide the necessary infrastructure/ manpower including provisions of official/ residential accommodation for these designated prosecutors enabling them to discharge their duties more effectively. All District SPs, Dy.SPs and the Specialized Investigation cells/teams shall be duty bound to ensure production of prosecution witnesses in the court of law during the course of trial of these cases. Besides the incharge of the Specialized Investigation cells/teams being the chief I.O shall act as the pairvi officer in order to ensure effective prosecution by keeping track of the trial. In the event of transfer of the I.O, the replacement officer shall be immediately nominated as pairvi officer so that cases do not fail for want of effective liaising, tracking and follow up. For an effective execution of process during the trial of cases, Witness Monitoring Cells be created at Zonal/District levels which shall work in close coordination with each other and the prosecutor of the concerned court. These cells shall work under the overall supervision of the Zonal IGPs/District SPs and any laxity on the part of these cells shall be dealt with departmentally under the relevant rules. The seized contrabands kept under safe custody in malkhanas of the police stations or the courts shall be, without any inordinate delay, produced/presented before the court conducting the trial of the case, for the purpose of trial/identification through the related witnesses in order to prevent failure of the case for want of production of the seized contraband. The concerned prosecutor shall monitor the production of seized contrabands through the pairvi officer on the given dates.

22 P a g e 20 The Special Fast Track Courts shall decide all cases under NDPS within a period of 6 months from the date of filing of challan subject to grant of extension by the Hon ble High Court in appropriate cases of exceptional nature inviting indulgence of the court. A calendar of trial in respect of each case shall be fixed and matters pertaining to bail should be decided within one week s time from filing of such application. After the culmination of the trial, in case of conviction, all the seized contrabands shall be destroyed/disposed of, under the orders of the Concerned Court after the appeal time is over, in the manner prescribed by the court and it shall be the duty of the concerned prosecutor to obtain all such orders from the court and ensure disposal of the contraband in order to prevent its recycling. Statement on monthly basis regarding the destruction/disposal of the seized contraband pertaining to the cases shall be shared with the PHQ through Zonal IGPs, where a proper data shall be maintained. Cases which end up in acquittal shall be appealed against without any unnecessary loss of time. In case of delay or laxity on the part of the concerned prosecutor, strict administrative/departmental action shall be initiated by the concerned supervisory officers/units. Similarly, in case of faulty investigations, deviation of the prescribed laws, burking of crime or illicit practices adopted by the investigating cell/team or its supervisory officer or during the pairvi of the cases at the time of trial, effective departmental actions shall be immediately initiated against the erring officers/officials found responsible for the lapses and stringent & exemplary punishments shall be awarded in each case. Cases in which strictures have already been passed by different courts, the District SPs shall submit the action taken reports (ATRs) on all the actions taken/enquiries conducted and punishments imposed on the erring officials involved in the defective/perfunctory investigation of the cases which ended in acquittal since the last five years, to the PHQ through their respective Zonal IGPs, who shall monitor the process and ensure that these reports are furnished by each District, without fail.

23 P a g e 21 Govt. should take effective measures through wide publicity in print and electronic media to make the general public aware of the menace of drugs, the strict laws and the procedures relating to drug trafficking to dissuade the potential criminals. All the District SPs in close coordination with the NCB units stationed in the state of J&K and the State Crime Branch shall take all possible steps in curbing the menace of drugs, its production and transportation besides effective measures shall be made to destroy the illegal/unmanned/wild vegetation/plantation of bhang, poppy etc. having potential to be converted as a narcotic drug within the meaning of NDPS Act. Effective steps shall also be taken to process the cases for preventive detentions of habitual offenders under the provisions of Prevention of Illicit Traffic in Narcotic Drugs & Psychotropic Substances Act, ******

24 P a g e 22 MANDATORY LEGAL PROVISIONS UNDER CHAPTER-V NDPS, Act 1985). Section 41. Power to issue warrant and authorisation; (1) A Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under this Act, or for the search, whether by day or by night, of any building, conveyance or place in which he has reason to believe any narcotic drug or psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed. (2) Any such officer of gazetted rank of the departments of central excise narcotics, customs, revenue intelligence or any other department of the Central Government including the para-military forces or the armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under this Act or that any narcotic drug or psychotropic substance or controlled substance in respect of which any offence under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy or a constable to arrest such a person or search a building, conveyance or place whether by day or by night or

25 P a g e 23 himself arrest such a person or search a building, conveyance or place. (3) The officer to whom a warrant under sub-section (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under sub-section (2) shall have all the powers of an officer acting under section 42. Section 42. Power of entry, search, seizure and arrest without warrant or authorisation; (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including paramilitary forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset, (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and

26 P a g e 24 (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records ground for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior. Section 43. Power of seizure and arrest in public place; Any officer of any of the departments mentioned in section 42 may 43 (a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. Explanation. For the purposes of this section, the expression public place includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public. Section 44. Power of entry, search, seizure and arrest in offences relating to coca plant, opium, poppy and cannabis plant;

27 P a g e 25 The provisions of sections 41, 42 and 43 shall so far as may be, apply in relation to the offences punishable under Chapter IV and relating to coca plant, the opium poppy or cannabis plant and for this purpose references in those sections to narcotic drugs, or psychotropic substance 1[or controlled substance], shall be construed as including references to coca plant, the opium poppy and cannabis plant. Section 45. Procedure where seizure of goods liable to confiscation not practicable; Where it is not practicable to seize any goods (including standing crop) which.are liable to confiscation under this Act, any officer duly authorised under section 42 may serve on the owner or person in possession of the goods, an order that he shall not remove, part with or otherwise deal with the goods except with the previous permission of such officer. Section 46. Duty of land holder to give information of illegal cultivation; Every holder of land shall give immediate information to any officer of the police or of any of the departments mentioned in section 42 of all the opium poppy, cannabis plant or coca plant which may be illegally cultivated within his land and every such holder of land who knowingly neglects to give such information, shall be, liable to punishment. Section 47. Duty of certain officers to give information of illegal cultivation; Every officer of the government and every panch, sarpanch and other village officer of whatever description shall give immediate information to any officer of the police or of any of the departments mentioned in section 42 when it may come to his knowledge that any land has been illegally cultivated with the opium poppy, cannabis plant or coca plant, and every such officer of the Government, panch, sarpanch and other village officer who neglects to give such information shall be liable to punishment. Section 48. Power of attachment of crop illegally cultivated;